In February 2015 the Brussels Court of Appeal – upon application by a number of Eubelius clients – held that dawn raids pursuant to the Belgian Competition Act may only be performed subject to a prior warrant issued by an independent judge.
The Belgian Competition Authority asked the Court of Cassation to quash the Court of Appeal's judgment. That request was dismissed on 26 April 2018. The Court of Cassation confirmed that dawn raids without a prior judicial warrant are unlawful.
The requirement of a prior judicial warrant has also been included in the Competition Act since 2013 (Book IV of the Economic Law Code).
The Court of Cassation also confirmed in its judgment that no use can be made of evidence seized during unlawful dawn raids or obtained pursuant to such unlawful raids. The Belgian Competition Authority had argued that it could nevertheless use unlawfully obtained evidence on the basis of the so-called "Antigoon" case law. In criminal cases it is recognised that an error with regard to the gathering of evidence may only in certain circumstances lead to exclusion of the evidence. However, the Court of Cassation does not transpose that case law in competition cases. The judgment of 26 April states that an appropriate remedy for an unlawful dawn raid in a cartel procedure can only be provided by excluding all evidence obtained from and on the basis of the dawn raid.